Just two years back, in 2016, Singapore crystallised its common law on contempt of court. Singapore’s then Law Minister K. Shanmugan was quoted saying, “the codification of the law will ensure that every one receives a fair trial, and public confidence in Singapore’s legal system is not eroded by baseless attacks on the courts’ integrity.”
Here at home, our laws on contempt are based on Common Law guided by British Law. Many times, the question about the need to codify the law has arisen, but never adequately addressed.
Codified laws refer to rules and regulations that have been collected, restated and written down. Codified laws are referred to as Statutes, Codes, Acts or Bills. For instance, the individual’s freedom from torture, guaranteed under the Fundamental Rights Chapter of the Constitution, is given effect through Penal Code provisions. In the Contempt of Court, there is no such legal instrument that lays down the law. Instead, it is left to judges and the courts to interpret the provisions of the Constitution dealing with Contempt of Court, based on the Common Law.
During the second tenure of President Chandrika Kumaratunga’s Government a parliamentary committee headed by the late Minister Lakshman Kadirgamar was set up to study the issue, but the Committee was not able to conclude its work before the term of the Government ended.
Had this yielded results, Sri Lanka would have had a written law that contains a statutory definition of what amounts to contempt, how to investigate, prosecute and punish the crime. At present, this area of the law is left to the discretion of the courts, hence, leaving room for uncertainty and opens the courts out to allegations of arbitrary interpretation.
Attorney at Law Chandrapala Kumarage says, when the law is not codified it is in the hands of the judges to infer and interpret. “This leaves room for a lot of flexibility and grey area” he says.
According to the former Dean of the Faculty of Law, University of Colombo, Professor N. Selvakumaran codification of any law should be welcomed as it will uphold the Rule of Law.
“Where there is lack of certainty it undermines the Rule of Law. Therefore, codification of any law is a positive sign that it will uphold the Rule of Law,” Prof Selvakumaran told the Sunday Observer.
So how does the court decide what amounts to contempt and what does not? According to a legal expert the question to ask is “Are you bringing the system of administration of justice into disrepute by your assertions?”
Article 105(3) of the Constitution gives the Supreme Court and the Court of Appeal the power to take up contempt matters and prosecute accordingly.
Back in 2004, then Minister S.B. Dissanayake was found guilty of Contempt of Court for a statement he made at a public speech in Habaraduwa, Galle. The five judge bench which comprised Chief Justice Sarath N. Silva, Justice Dr. Shirani Bandaranayake, Justice T. B. Weerasuriya, Justice N. E. Dissanayake and Justice Raja Fernando convicted and sentenced him to two years rigorous imprisonment.
Under the Common Law, contempt rules cover statements on ongoing cases, criticisms of courts and judges and expression in court.
This can also be cited as one of the reasons for lack of academic critique on judicial decisions in Sri Lanka. Back in 2003, Global Campaign for Free Expression made submissions and recommendations for the codification of laws pertaining to Contempt of Court in Sri Lanka. In its recommendations it was highlighted that the powers of the Supreme Court should be limited and that the offences should be clearly defined.
“The law should not only define the scope of the offence, but also list any legitimate aims which the offence serves, which should be limited to preventing prejudice to ongoing legal cases and ensuring the integrity of court procedures,” the report recommends. In order to uphold freedom of expression the Global Campaign for Free Expression recommends that “The law should explicitly establish that the rules relating to Contempt of Court should be interpreted consistently with the guarantee of freedom of expression and, in particular, that any measures which would lead to a disproportionate restriction on freedom of expression cannot be justified.”
The recommendations, touching upon scandalizing of the courts, state that “No liability should ensue for criticising judges or courts. Any excessive criticism by court officials, including lawyers, should be dealt with as a professional matter. If such a rule is retained, it should apply only to criticism presented in a grossly inappropriate manner, totally lacking any legitimate basis, made with an intention to cause harm and posing a clear and present danger to the administration of justice.”
Recommendations pertaining to the judicial process states that “Judges should not adjudicate cases of Contempt of Court in which they are directly implicated, either personally or in relation to a case in which they were or are involved; and where necessary to prevent the immediate or ongoing disruption of a case, judges may take such action as may be required to prevent the disruption from continuing. Normally, removal of the individual causing the disruption should be sufficient to achieve this objective.”
Pointing out the flip side of codification Prof Selvakumaran points out, codification may raise a level of rigidity that may work hard, so that when laws are formulated he says, “there should be some margin for the interpreters of the law to be flexible to take up any emerging situation”.
The codified law should not be stifling the interpreters or implementers of the law in the future. As things change as they emerge, there should be a certain degree of flexibility for interpreters to apply the existing laws to emerging scenarios.
“The only criminal offence which remains in the realms of Common Law which has not been codified is Contempt of Court. It is necessary to activate this process of Parliament to codify the only remaining offence in the realm of Common Law,” an expert in the legal field observed.
With Deputy Minister Ranjan Ramanayake facing Contempt of Court charges, based on statements he made publicly about the judiciary, the time may be ripe for robust debate on contempt laws and their application.